Supreme Court Year in Review

It is certainly possible that the Supreme Court term that begins next October will have an extraordinary number of high-profile cases. Nominees for next term's major cases could include the challenge to the health care law; the Proposition 8 gay marriage case from California; the constitutionality of the Defense of Marriage Act; the most important of the Arizona immigration control laws; and the warrantless GPS monitoring case, which the National Association of Criminal Defense Lawyer has already predicted will be the "the most important privacy case since Katz v. United States," which was issued in 1967.

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But as Paul notes, you never know. Many a case that has been "headed for the Supreme Court" has wound up headed to the nearest exit. Of that list, the least likely case to make it to the Supreme Court is the appeal from Judge Vaughn Walker's decision that gay couples in California have a constitutional right to marry. As I noted in Slate last year, that case should never make it to the Supreme Court because no affected party with standing has chosen to appeal. And I would not be shocked if the Supreme Court took one or more of the challenges to the health care law's "individual mandate" but dismissed those cases on the basis of one or more arguably serious jurisdictional flaws. The court would eventually hear a challenge to the health care law, but it would not be until some taxpayer sought a refund in 2015 of the 2.5 percent penalty for not having minimum health insurance coverage in place when that requirement goes into effect in 2014.

Of course, on standing I've always thought it important that the court decide constitutional issues only when there is a real case involving real parties with a real, legal stake in the outcome. That is why I thought the court should have used the opportunity it had this term in Arizona Christian School Tuition Organization v. Winnto overrule Flast v. Cohen, a 1968 case that allowed a taxpayer who had not a single penny of tax liability at stake to challenge a government expenditure supporting religion. I have always thought Flast wrongly decided, but I could understand why those liberals who favored giving courts more power to decide more cases liked it back in the '60s. But I can't figure out why those liberals find it desirable to cling to Flast in an era of increasingly conservative courts. As our look ahead to next term suggests, there are good, solid standing rules that could protect the decision favoring gay marriage in California, and put off a decision on the health care law. But whichever way strong standing rules cut, they are wise, as I have said before, because they stand for the proposition that courts get to decide constitutional issues not because they are special or better than anybody else, but only because they have a job to do—resolving actual cases—and applying the law is necessary to that job. Respect for good standing rules should create a bit more humility about the courts' proper role.

Well, judicial review lives on, so there will likely be another Breakfast Table next year. But until we see what cases the court actually takes, we can't really know how newsworthy next year's end-of-term decisions will to be. Our editor, Michael Newman, says it would be nice if the Supreme Court would keep Slate's needs in mind when shaping its docket.

Good point. Paul, I assume that you would be the right person to convey that thought to the chief justice, right?

Until next year,Walter

Walter Dellinger was head of the Office of Legal Counsel from 1993 to 1996.